In Re Overfield

IN THE MATTER OF THE APPLICATION OF FREDERICK OVERFIELD FOR A WRIT OF HABEAS CORPUS.

M. B. Moore, for Petitioner.

Edward F. Lunsford, District Attorney, for Respondent.

By the Court, McCarran, J.:

This is an original proceeding in habeas corpus, in which the petitioner, Frederick Overfield, seeks to secure his release by order of this court from the custody of the sheriff of Washoe County, and also from the custody of one Victor Christopherson, the duly authorized agent of the State of Utah.

It appears from the petition that while petitioner was on his way to San Francisco he stopped over in the city of Reno to visit friends, and was there arrested by the sheriff of Washoe County, and has since been arrested and detained by said officer as a fugitive from justice. There are before us the requisition papers issued by the governor of the State of Utah, as well as the executive warrant issued by his excellency the governor of Nevada.

1. It has long since been established as a rule of this court that on matters of this kind the court would go behind the executive warrant and inquire into the sufficiency of the papers constituting the requisition issued out of the demanding state.

2. Petitioner in this case attacks the complaint on which and by reason of which he is sought to be returned to the State of Utah. The instrument, in substance, is as follows:

On this 23d day of October, A. D. 1915, before me, L. R. Martineau, Jr., justice of the peace within and for Salt Lake City precinct, Salt Lake County, State of Utah, personally appeared Elmer L. Blake, who, on being duly sworn by me, on his oath did say that Frederick Overfield, on the 15th, 16th, and 17th days of October, A. D. 1915, at the County of Salt Lake, State of Utah, did commit the crime of being an accessory to the crime of obtaining property by false pretenses, as follows, to wit: That upon the 9th day of October, 1915, one Mark L. Kilbourne, at the County of Salt Lake, State of Utah, wilfully, unlawfully, knowingly, designedly, and with intent to cheat and defraud the International Consolidated Oil Company of Wyoming, a corporation, of its personal property hereinafter described, did falsely and fraudulently pretend and represent to Elmer L. Blake, who was then and there the

[39 Nev. 30, Page 33]

fiscal agent of said corporation, that he, the said Mark L. Kilbourne, had secured as a purchaser of bonds of the International Consolidated Oil Company of Wyoming, of the value of $2,000, one Mr. Arlison, of the Judge Building, Salt Lake City and County, State of Utah; and the said Elmer L. Blake, then and there believing the false pretense and representation so made as aforesaid by the said Mark L. Kilbourne to be true, and then and there being deceived thereby, was then and there induced, as said fiscal agent of the said International Consolidated Oil Company of Wyoming, to part with and deliver to the said Mark L. Kilbourne, and he did then and there part with and deliver to the said Mark L. Kilbourne bonds of the International Consolidated Oil Company of Wyoming of the value of $2,000, lawful money of the United States of America, the personal property of the said International Consolidated Oil Company of Wyoming; and the said Mark L. Kilbourne did then and there wilfully, unlawfully, knowingly, and designedly receive and obtain the said bonds of the said International Consolidated Oil Company of Wyoming from the said Elmer L. Blake by means of the false pretense and representation so made as aforesaid, and with intent then and there to cheat and defraud the said International Consolidated Oil Company of Wyoming of the said bonds, whereas, in truth and in fact, the said Mark L. Kilbourne had not, and he well knew that he had not, at the time and place aforesaid, secured as a purchaser for said bonds as aforesaid one Mr. Arlison, of the Judge Building, Salt Lake County, State of Utah; and the said Elmer L. Blake, as fiscal agent of the International Consolidated Oil Company of Wyoming, would not, as aforesaid, have parted with the said property, except upon the representation so made to him as aforesaid by the said Mark L. Kilbourne, and that afterwards, on the 15th, 16th, and 17th days of October, 1915, at the County of Salt Lake and State of Utah, as aforesaid, the said defendant, Frederick Overfield, well knowing the said Mark L. Kilbourne to have done and committed the said crime of obtaining property under false pretenses

[39 Nev. 30, Page 34]

in the manner and form aforesaid, and the said Frederick Overfield then and there having in his possession said bonds of the International Consolidated Oil Company of Wyoming of the value of $2,000, did then and there wilfully, unlawfully, and feloniously protect the said Mark L. Kilbourne in the manner as follows: That the said Frederick Overfield, upon the said 15th, 16th, and 17th days of October, 1915, at the place aforesaid, did persuade and induce the aforesaid Elmer L. Blake to agree to delay the institution of criminal proceedings against the aforesaid Mark L. Kilbourne until 9 o'clock a. m. on the 18th day of October, A. D. 1915; and the said Elmer L. Blake, actuated by said persuasions, inducements, and agreement, did delay the institution of criminal proceedings against the aforesaid Mark L. Kilbourne until 9 o'clock a. m. on the 18th day of October, 1915; and, by virtue of said delay so caused as aforesaid, the aforesaid Mark L. Kilbourne did, on one of the days aforesaid, to wit, the 15th, 16th, and 17th days of October, 1915, depart from the State of Utah, and the said Frederick Overfield well knew that, by virtue of said delay so caused as aforesaid, the aforesaid Mark L. Kilbourne did depart from the State of Utah; and the said Frederick Overfield did, by virtue of said delay so caused as aforesaid, himself, upon the 17th day of October, 1915, depart from the State of Utah and take with him in his possession the aforesaid bonds of the International Consolidated Oil Company of Wyoming of the value of $2,000.

By this complaint the authorities of the State of Utah seek to charge the petitioner here as being an accessory after the fact to the crime of obtaining property by false pretenses.

The Penal Code of the State of Utah (section 4075) is as follows:

All persons who, after full knowledge that a felony has been committed, conceal it from the magistrate, or harbor and protect the person charged therewith or convicted thereof, are accessories.

It is the contention of counsel for ...

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